The Nutmeg Lawyer

Thursday, February 10, 2011

$#*! My Lawyer Says....

When Clients Don't Listen

I recently had a client who approached me for help with an arrest. The middle aged gentleman said he normally didn't use attorneys, but he didn't have time for the paperwork. My first intake question was pretty standard. "What kind of car do you drive?" I needed to determine how much I would charge him. I eventually got around to asking him what he did to get arrested.

A pillar of the community, "Mr. Daniels" had been arrested for driving under the influence. After attending a wedding, he had crashed his luxury car into the back of a police cruiser. He had admitted to the police he had been drinking and his blood alcohol content was off the charts. Based on the evidence, I had recommended a diversionary program available to first time offenders. With the overwhelming evidence stacked against him, I surmised that going to trial was too risky. Besides, the police tend to frown on people who crash into them. A successful completion of the program could result in a clean record. The client was admitted into the alcohol education program and was instructed to take 15 classes and attend a MADD victim impact panel. The caveat was that he not drive while his license was suspended. Through a special driver's permit, he could drive to and from his job during alloted hours. After explaining his permit restrictions I warned him that any deviation could result in jail time.

Following the court hearing, the client's friend told him not to listen to "that shit your lawyer said." He told Daniels that he could absolutely drive as long as he had the permit. "My friend was arrested for the same thing. He drives all the time."Not surprisingly, the client was arrested coming back from a casino at three in the morning. He was not driving during his permitted hours. The casino was two hours away from his job. After bailing out, he barged into my office dragging his furious wife. "What kind of lawyer are you? That permit you arranged for my husband was worthless. This is your fault. They should be arresting the real criminals!"

Mr. Carpet, Esq.

Although I wanted to tell her that her husband was one of the "real criminals", I decided to bite my tongue. Instead, I calmly explained that I had warned her husband about the restrictions on his permit. "You never told us he was not allowed to drive. Besides, our friend told us that you were wrong." I looked at her in disbelief and asked what her friend did for a living. "He installs carpeting."

This was not the first time a client failed to remember my instructions or warnings. Thankfully, our office had just implemented a standard warning letter to our clients. Following each case, I also do a follow up meeting with the client. In this matter, I had prepared a letter which included the terms of his diversionary program along with various warnings. I had included a section regarding driving on his special permit. I gave Mr. Daniels another copy of the letter which had included his signature.

I guess the moral of the story is that client's can have selective memories. It is important to document any advice or instructions to your clients. This is especially true when a deviation of those instructions can lead to trouble. (I tend to increase the level of my documentation based on the difficulty of the client). I also make an effort to document the client's instructions. I have found that a follow up email to confirm a conversation is usually effective.It can help explain why work was done. It can even help you avoid a future unjustified malpractice claim.

A Note From the Author

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-Adrian

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